Andrew Swope v. Jo Anne B. Barnhart, Commissioner of Social Security

436 F.3d 1023, 2006 U.S. App. LEXIS 2312, 2006 WL 224031
CourtCourt of Appeals for the Eighth Circuit
DecidedJanuary 31, 2006
Docket05-1315
StatusPublished
Cited by16 cases

This text of 436 F.3d 1023 (Andrew Swope v. Jo Anne B. Barnhart, Commissioner of Social Security) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Andrew Swope v. Jo Anne B. Barnhart, Commissioner of Social Security, 436 F.3d 1023, 2006 U.S. App. LEXIS 2312, 2006 WL 224031 (8th Cir. 2006).

Opinion

HEANEY, Circuit Judge.

Andrew Swope appeals from a judgment of the United States District Court for the Western District of Missouri affirming the decision of an administrative law judge (ALJ), on behalf of the Commissioner of the Social Security Administration (Commissioner). The ALJ found that Swope was not entitled to a period of disability insurance benefits nor eligible for Supplemental Security Income under the Social Security Act. We reverse and remand.

*1024 Swope, a thirty-nine year old male, made three applications for social security disability benefits. The first two were denied at the administrative level, and no appeal was taken. In the instant application, Swope alleged an onset date of disability of September 26, 1998. His claim was denied at each administrative proceeding. Swope then filed a petition for review with the United States District Court for the Western District of Missouri.

The evidence presented to the ALJ established that Swope was initially employed in 1985, working first as a newspaper bagger and then as a security guard. He earned from $5,000 to $8,000 a year until he was injured on the job in 1995. Following his workplace injury, Swope’s earnings were sharply reduced due to reasons that he attributes to his injury. The ALJ concluded that the medical evidence supported his finding that Swope had the following severe impairments: “1. degenerative disc disease of the thoracic and lumbar spine, with a bulging disc at L5-Sl, L5 spondylolisthesis, and history of a compression fracture at Til; 2. hypertension; and 3. obesity.” (Admin. R. at 20.) He also found, however, that these impairments, when considered either singly or in combination, did not meet or equal a listed impairment. He went on to find that Swope could not return to his past relevant work as a security guard because of his limitation in walking. A vocational expert, called by the ALJ, testified that there were several jobs in the national and local economies that Swope could perform.

After reviewing the testimony, the ALJ determined that Swope’s contentions that he was disabled because of pain were not credible because: (1) they were not supported by medical, clinical, and laboratory evaluations; (2) he has only moderately limited range of motion, little or no muscle weakness, normal reflexes, and the ability to ambulate effectively without assistive devices; (3) Swope’s credibility with respect to the degree of pain he incurs was further diminished by his daily activities, including doing dishes, shopping, carrying groceries into the house, driving a car, mowing the lawn, and fishing; (4) Swope takes no prescription medication for pain and no surgery has been recommended by any treating source for Swope’s condition, who have recommended only exercise and weight loss; and (5) Swope’s testimony that he had fallen six times because of his disability was not supported by the record.

On appeal to this court, Swope contends that the Commissioner’s decision denying his claim for disability and SSI benefits is not supported by substantial evidence in the record as a whole. He contends that the ALJ wrongly discredited his testimony and that of his witnesses. He further asserts that the ALJ overlooked uncontro-verted evidence that Swope suffers from significant nonexertional impairments, including disabling pain, the need to lie down frequently because of fatigue caused by his condition, and borderline intellectual functioning.

After reviewing the record, we find it necessary to remand this matter for further proceedings. The ALJ’s hypothetical to the vocational expert failed to reference Swope’s limited intellectual functioning. Swope underwent a Wechsler Adult Intelligence ScaleUEtevised IQ test on October 26,1995, that revealed a verbal IQ of 82, performance IQ of 88, and full-scale IQ of 83. These scores place Swope in the category of borderline intellectual functioning. See Hutsell v. Massanari, 259 F.3d 707, 709 n. 3 (8th Cir.2001) (“Borderline intellectual functioning is a condition defined as an IQ score within the 71-84 range while mental retardation is a score of about 70 or below.”); see also Diagnostic and Statistical Manual of Mental Dis *1025 orders at 741 (4th ed. Text Revision 2000).

We recognize that Swope’s scores do not support a finding of disability as a listed impairment, 1 but that does not alter our conclusion that his intellectual limitations should have been included in the hypothetical posed to the vocational expert. In fashioning an appropriate hypothetical question for a vocational expert, the ALJ is required to include “all the claimant’s impairments supported by substantial evidence in the record as a whole.” Grissom, v. Barnhart, 416 F.3d 834, 837 (8th Cir.2005) (emphasis added). Time and again, this court has “ ‘concluded that borderline intellectual functioning, if supported by the record as it is here, is a significant nonexertional impairment that must be considered by a vocational expert.’ ” Id. (quoting Lucy v. Chater, 113 F.3d 905, 908 (8th Cir.1997)); see also Pickney v. Chater, 96 F.3d 294, 297 (8th Cir.1996). There is no indication in the AL J’s order that he disbelieved the results of Swope’s IQ tests, 2 and thus we are of the firm conviction that it was error not to include those results in the hypothetical posed to the vocational expert.

Swope’s case is illustrative of why our court deems it critical for ALJs to pose thorough and complete hypothetical questions to vocational experts. In this case, the ALJ, in posing a hypothetical to the vocational expert' as to whethér Swope could perform any other jobs in the national economy, did not include any reference to Swope’s intellectual capacity. In response to the hypothetical, the vocational expert opined that Swope could perform other jobs in the national and local economies, including security monitor (of which there were 750 jobs in Missouri and 76,000 in the national economy), gatekeeper (2,500 jobs in Missouri and 285,000 nationally), and sedentary cashier (3,200 jobs in Missouri and 165,000 nationally). (Admin. R. at 401.) The problem with failing to advise the vocational expert as to Swope’s mental limitation is that the jobs the vocational expert said Swope could perform all appear to be beyond his capabilities. In the Dictionary of Occupational Titles (DOT), the position of gate guard requires a reasoning level of 3 and language development level of 2, § 372.667-030, Gate Guard (Any Industry); Security Officer, reasoning level 4, language development level 4, § 189.167-034, Security Officer (Any Industry). All jobs listed in the DOT under the heading of Cashiers and Tellers, with the exception of the position of “Change Person,” require a reasoning level of at least 3, and language development level of at least 2.

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Bluebook (online)
436 F.3d 1023, 2006 U.S. App. LEXIS 2312, 2006 WL 224031, Counsel Stack Legal Research, https://law.counselstack.com/opinion/andrew-swope-v-jo-anne-b-barnhart-commissioner-of-social-security-ca8-2006.